Columbia Law School Scholarship Archive Faculty Scholarship Faculty Publications 2012 Defining ederF al Crimes – Chapters 2-4 Daniel C. Richman Columbia Law School, [email protected] Kate Stith [email protected] William J. Stuntz [email protected] Follow this and additional works at: https://scholarship.law.columbia.edu/faculty_scholarship Part of the Criminal Law Commons Recommended Citation Daniel C. Richman, Kate Stith & William J. Stuntz, Defining ederF al Crimes – Chapters 2-4, DEFINING FEDERAL CRIMES, DANIEL C. RICHMAN, KATE STITH & WILLIAM J. STUNTZ, EDS., WOLTERS KLUWER, 2014; YALE LAW SCHOOL PUBLIC LAW WORKING PAPER NO. 253 (2012). Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1757 This Working Paper is brought to you for free and open access by the Faculty Publications at Scholarship Archive. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Scholarship Archive. For more information, please contact [email protected]. Defining Federal Crimes (chapters 2-4) Daniel C. Richman Paul J. Kellner Professor of Law Columbia University Kate Stith Lafayette S. Foster Professor of Law Yale University William J. Stuntz Henry J. Friendly Professor of Law Harvard University Forthcoming Aspen Publishing. © 2012, all rights reserved. 1 Electronic copy available at: http://ssrn.com/abstract=2103868 Chapter 2 Jurisdiction: Federal Criminal Law and the Commerce Power The Framers of the Constitution did not envision that the federal government would play much of a role in criminal enforcement. To the extent that they contemplated substantive federal criminal law at all, their discussions centered on piracy, crimes against the law of nations, treason, and counterfeiting. The document they produced made no effort to give the federal government general police powers of the sort that states exercised. By one count, only 426 criminal cases were brought in federal courts between 1789 and 1801, a large fraction of which related to the Whiskey Rebellion. See Dwight F. Henderson, Congress, Courts, and Criminals: The Development of Federal Criminal Law, 1801-1829 at 13 (1985). In the absence of relevant federal statutes, Federalist judges simply invoked federal common law and looked to state law to try and punish the rebels. See Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815, 417-18 (2009). Congress was not eager to address crime even in areas where it clearly had constitutional jurisdiction to do so. In 1818, the Supreme Court threw out the conviction in a case where a marine had murdered a cook’s mate on board the U.S.S. Independence while it was anchored in Boston Harbor. United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818) (see also infra p. x [Chapter 3]). Writing for the Court, Chief Justice John Marshall explained that while Congress could have passed a murder statute covering federal warships, it had not, and the matter was thus left to Massachusetts’s exclusive jurisdiction. Indeed, exclusive state jurisdiction over criminal matters was very much the rule during most of the nineteenth century. When Congress did pass penal legislation, it generally targeted activities that injured or interfered with federal property (see Art. IV, sec. 3, cl. 2) or interfered with the function of the federal government itself, particularly its ability to collect taxes. In the last quarter of the nineteenth century, federal criminal law began to take on a new role. No longer was it primarily a means of self-protection. Rather, it became part of a more general (albeit fitful) state-building effort. For a classic account of this general turn, see Stephen Skowronek, Building a New American State: The Expansion of National Administrative 2 Electronic copy available at: http://ssrn.com/abstract=2103868 Capacities, 1877-1920 (1982). Congress could have relied—and in time did rely—on any number of constitutional jurisdictional grants to spin its thickening web of federal criminal law. In Chapter 4, we will see how the Postal Power supported an ever-growing body of mail fraud law. Chapter 6 will show the Spending Power to be a potent weapon against state and local corruption, and Chapter 7 will consider the increasing recourse to the Reconstruction Amendments as a basis for right-deprivation prosecutions. Yet, it is the Commerce Clause that has provided the basis for the vast majority of federal criminal laws enacted by Congress since the post-Reconstruction period. We therefore begin with this fountainhead of federal criminal jurisdiction. Section A explores that part of Commerce Clause jurisdiction on which Congress has chiefly relied: the power to regulate “commerce . among the several states.” Section B considers the part to which Congress has given increasing attention in recent years: the related power to regulate “commerce with foreign nations.” A. “COMMERCE . AMONG THE SEVERAL STATES” 1. Historical Development There is no evidence that any of the Constitution’s Framers thought about criminal law when drafting the Commerce Clause. The commerce power later became a useful source of criminal jurisdiction not because commerce and crime were so obviously connected, but because there was so much commerce. In the late nineteenth and early twentieth centuries—the period of the first great upsurge in federal criminal law—the United States had the fastest-growing and, soon, the largest economy in the world. Both immigrant labor and investment dollars flowed into the country in massive amounts. The United States also had, by a large margin, the most railroads serving the most people across the largest distances of any country in the world. Movement of goods and people across state borders was exploding. The crimes that members of Congress were chiefly interested in prohibiting were commercial in character, though the “commerce” was of a different sort than Madison and his friends imagined when they penned the clause. The late nineteenth and early twentieth centuries were an era of anti-vice crusades—crusades against gambling, prostitution, drugs, and, the biggest crusade of all, liquor. These goods and services are bought and sold in markets, and the relevant markets require the interstate movement of merchandise and/or people. At the same time, with respect to each of these vices, most transactions were (and remain) local: both buyer 3 and seller reside and do business in the same state, usually the same city. The following propositions set patterns for federal criminal law that still hold today. First, the federal government had power only over interstate commerce, and thus could not forbid all markets relating to the vices in question. When, for example, Prohibitionists sought a nationwide ban of the manufacture and sale of alcoholic beverages, they assumed that they needed a constitutional amendment to enact it. The second proposition followed from the first: the federal criminal law of vice would have to coexist with and overlap state law. Federal criminal law would cover territory that states covered as well, rather than dealing with offenses that the states could not touch. Third, the jurisdictional justification for federal vice laws, regulating the interstate movement of goods and people, had little to do with the substantive justification for those laws—that is, the desire to ban the relevant vice. Thus, the jurisdictional “hooks” for the wave of federal vice statutes passed beginning in the 1880s were just that— hooks, not reasons for the criminal prohibitions. See Louis B. Schwartz, Federal Criminal Jurisdiction and Prosecutors’ Discretion, 13 Law & Contemp. Probs. 64, 79-80 (1948) (discussing how courts tend to focus on jurisdictional problems at the expense of focusing on substantive issues of criminality). One more proposition—an intensely practical one—is crucial to understanding the historical evolution of the commerce power and its effect on federal criminal justice. Throughout the nineteenth century, the federal law enforcement bureaucracy remained very small. Agents of the postal service protected the mails; United States marshals protected judges and performed sundry other duties; treasury personnel fought smuggling; and, after its creation in 1865, the Secret Service targeted counterfeiting. There were, however, very few agents and prosecutors available to enforce the broad federal crimes of which Congress soon grew fond. Though the office of the Attorney General dates back to the Founding, there was no Justice Department prior to 1870. Until then, the United States Attorneys brought prosecutions in their respective federal districts, but with little national coordination and with little control over the how federal law enforcement personnel were deployed. Even after its creation, the Justice Department had scant resources, and initially had to rely on the Treasury’s Secret Service agents or Pinkerton Detective Agency operatives for investigative support. The justice system that enforced the law grew much more slowly than the laws that required enforcing. The following case marks a critical stage in the growth of federal Commerce Clause authority. By the end of the nineteenth century, it was clear that Congress could use its plenary authority to exclude things it did not like—e.g., pornography, lottery tickets, and contraceptive 4 devices—from the U.S. mails. See, e.g., Ex parte Jackson, 96 U.S. 727 (1877) (upholding conviction for mailing of lottery circular); Donna Dennis, Licentious Gotham: Erotic Publishing